United States v. Ribas-Dominicci, 1st Cir. (1995)

7/26/2019 United States v. Ribas-Dominicci, 1st Cir. (1995)

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USCA1 Opinion

UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

____________________

No. 94-1880

UNITED STATES,

Appellee,

v.

SALVADOR RIBAS-DOMINICCI,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos Antonio Fust , U.S. District Judge] ___________________

____________________

Before

Cyr, Circuit Judge, _____________ Bownes, Senior Circuit Judge, ____________________ and Boudin, Circuit Judge. _____________

____________________


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Pamela A. Wilk, with whom Peter Goldberger, Alan Ellis,_______________ _________________ ___________

Offices of Alan Ellis, P.C. were on brief for appellant. ___________________________ Miguel A. Pereira, Assistant United States Attorney, wit

__________________ Guillermo Gil, United States Attorney, and Jose A. Quiles-Es

_____________ _________________ Senior Litigation Counsel, were on brief for appellee.

____________________

March 24, 1995 ____________________

BOWNES, Senior Circuit Judge. Defendant-appella

BOWNES, Senior Circuit Judge. ____________________

Salvador Ribas-Dominici appeals the denial of his motion

withdraw his plea of guilty. Ribas, a lawyer, engineer, a

self-styled military procurement expert, was indicted in t

District Court of Puerto Rico on five counts of stealin

converting, and selling property of the United States

violation of 18 U.S.C. 641.1 We first summarize t


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essential facts.

I. I.

In 1987 the United States Department of Defen

awarded a contract to Quality Manufacturing, Inc.,

corporation owned and controlled by Ribas, for t

manufacture of 1,692,120 pairs of military trousers. T

contract price was $24,197,316. Under the contract ter

the government made fourteen progress payments betwe

October, 1987 and October, 1990 totalling approximate

$9,600,000. The indictment alleges that the United Stat

received from Ribas' corporation - "Quality" - goods a

____________________

1. 18 U.S.C. 641 sets forth criminal sanctions for:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; . . .

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services amounting to approximately $9,200,00

(Introductory allegation 8.) The indictment alleges t

"title or ownership" of the items manufactured under t

contract passed to the United States not later than fin

inspection and approval by government inspector

(Introductory allegation 9.) The district court, in i

opinion rejecting the plea-withdrawal motion, found t

"[t]itle to the trousers passed to the United States

August 28 and September 4, 1991." The government claimed

have evidence that would prove that Ribas had be

specifically instructed not to dispose of any of t

trousers.

Count One of the indictment charges that Ribas

willfully and knowingly steal, convert, and sell to a thi

party 16,135 pairs of trousers worth approximate

$227,000.00, which were the goods and property of the Unit

States. Count Two alleges the same as to 4,200 pairs

trousers worth approximately $59,000. Count Three char

the same as to 10,019 pairs of trousers worth approximate

$141,000. Count Four alleges the same crime as to 600 pai

of trousers with a value of approximately $8,000. Cou

Five, the final count, charged the theft and sale to a thi

party of 336 pairs of trousers worth approximately $4,500.

On the morning that trial was scheduled to commen

Ribas signed a plea agreement and pled guilty to Counts Fo


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and Five of the indictment. The government dismissed t

first three counts. Ribas was represented by couns

throughout the plea bargaining process, and the Rule

proceedings. Two weeks after the plea and before sentencin

Ribas' original counsel moved to withdraw his appearance

the ground that Ribas had retained new counsel. At about t

same time, the new counsel informed the prosecutor that

motion to withdraw the guilty plea would be filed. This

done less than a month after the plea. A two-day hearing

held on the withdrawal motion, which was denied by t

district court in a thirty-five page memorandum order.

the reasons that follow, we reverse the district court a

remand for trial.

II.

II.

Because defendant's motion for withdrawal of pl

was made before sentencing, Fed. R. Crim. P. 32(d)


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implicated. It provides:

If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and

just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. 2255.

This circuit has built a formidable body

precedent covering the withdrawal of a guilty plea. We sta

with a rule that is so obvious, it may be overlooked:

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defendant has no absolute right to withdraw a guilty ple

United States v. Tilley, 964 F.2d 55, 72 (1st Cir. 1992). _____________ ______

In a very recent case, United States v. Jose Ra _____________ _______

Cotal-Crespo, No. 94-1354 (1st Cir. Jan. 30, 1995),

____________

reiterated the principles that govern the issue of whether

guilty plea may be withdrawn. We stated the factors t


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should be considered in determining whether there is "a fa

and just reason" for withdrawing the plea. The mo

significant is, "whether the plea was knowing, voluntary a

intelligent within the meaning of Rule 11." Id., slip op.

___

5. Other factors to be considered are "the force a

plausibility of the proffered reason; the timing of t

request; whether the defendant has asserted his le

innocence; and whether the parties had reached a pl

agreement." Id.___

In discussing Rule 11 we said:

By entering a guilty plea, a defendant effectively waives several constitutional rights. For that waiver to be valid, due process requires that the plea amount to a voluntary and "intentional relinquishment or abandonment of a known right or privilege." McCarthy v. United ________ ______ States, 394 U.S. 459, 466, 89 S. Ct. ______ 1166, 22 L.Ed.2d 418 (1969) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 _______ ______ S. Ct. 1019, 82 L.Ed.2d 1461 (1938)).

Id. We pointed out that technical violations of Rule 11

___

not count, but that a violation of one of the Rule's co

concerns mandates that the plea be set aside. And

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specified three core concerns: "1) absence of coercion;

understanding of the charges; and 3) knowledge of t

consequences of the guilty plea." Id., slip op. at 7.___

reiterated that under the law of this circuit, in determini

whether there has been a core violation, "we review t

totality of the circumstances surrounding the Rule

hearing." Id. "What is critical is the substance of w ___

was communicated by the trial court, and what shou

reasonably have been understood by the defendant, rather t

the form of the communication." Id. We ended o ___

restatement of basic principles by noting that our standa

of review is abuse of discretion, and that the trial court

findings of fact are reviewed only for clear error. I _

slip op. at 8.

On the question whether there is an abuse

discretion in a Rule 11 setting we have observed:

Yet "discretion" may be somewhat more

limited where there is an outright violation of Rule 11 rather than merely second thoughts by a defendant prompting him to reconsider his plea.


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United States v. Raineri, 42 F.3d 36, 41 (1st Cir. 1994)._____________ _______

also noted:

Finally, we have considered whether guilty pleas should be set aside . . . under some type of per se rule or because

of a threatened miscarriage of justice. On the former point, we think that there may well be Rule 11 hearings so fundamentally defective that harm must be assumed or deemed irrelevant.

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Id. at 45. ___

III. III.

Our review of the Rule 11 plea proceedin

discloses two serious errors. First, was the followi

statement by the


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court:


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THE COURT: For this to be an offense the Government has to prove that this conduct described in the indictment was done willfully and knowingly, was entered into willfully and knowingly by you. That means that the Government has to prove that at some point in time you had

some reasonable understanding that what you were about to do and actually did was wrong, was marginal conduct, was questionable, was of the kind of thing that if somebody would find out you could be in the predicament that you are now in. In other words, that you had a -- had or should have had a pretty good understanding that this was wrong and against the law and you decided to do it

that way. That is an element. Do you understand that?

THE DEFENDANT: Yes, sir.

The opening sentence of the statement by the cou

was not incorrect. It told the defendant that the governme

had to prove that the "conduct described in the indictme

was done willfully and knowingly, was entered into willful

and knowingly by you." The meaning of willfully a

knowingly was, however, misstated by the court in the balan

of its explanation. Willfully and knowingly in the crimin

context does not mean that all the government had to pro

was that defendant had "some reasonable understanding" t

what he did "was marginal conduct, was questionable."

was the government's burden of proof limited to showing t

defendant "had or should have had a pretty good understandi

that this was wrong and against the law." The government

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to prove in the context of this case that defendant knew t

the trousers belonged to the government when he sold them

others. See United States v. McRee, 7 F.3d 976, 980 (11 ___ _____________ _____

Cir. 1993); United States v. Lanier, 920 F.2d 887, 895 (11 _____________ ______

Cir. 1991). Significantly, there was no mention of intent

mens rea in the first statement by the court. ____ ___

At the end of the plea hearing this colloquy too

place:

THE COURT: May I ask you something, Mr. Ribas, just tell me in your own words what was the mental process, if you will, that led you to do these two sales to

this Tiendas Militares?

THE DEFENDANT: Well, your Honor, at the time the company was having very serious financial difficulties and we were attempting to raise cash to continue the operations and continue getting to be a viable organization. And although it ________________ has happened that it is a crime, at that

_________________________________________ instant I was not consciously stealing _________________________________________ and selling, but, obviously, I made a _________________________________________


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mistake that is typified as a crime. _________________________________________ (Emphasis added.)

THE COURT: But you do accept now, _________________________ that when you look into retrospect into _________________________________________

the whole situation, obviously, you did _________________________________________ something wrong and against the law, _________________________________________ without a doubt? (Emphasis added.) ________________


THE COURT: I understand. You have no

doubt about that part now?

THE DEFENDANT: Excuse me, sir?

THE COURT: You have no doubt about that part now?

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THE DEFENDANT: No, sir.

THE COURT: Perhaps you were -- you

acted too fast and you looked the other way, that's what happened in this case?



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THE COURT: Okay, I understand. Very well. The Court is going to accept the plea of guilty entered by the defendant as to Counts Four and Five. Judgment of guilty will be entered. Presentence Report will be ordered. And I will give you a sentencing date.

In Morrisette v. United States, 342 U.S. 2 __________ ______________

(1952), it was decided unanimously that criminal intent

an essential element of an offense under 18 U.S.C. 641, t

same statute that Ribas was accused of violating. Part

Justice Jackson's opinion was an historical exegesis of t

role of intent in criminal law. His words read as eloquent

now as they did forty-odd years ago. One small sample wi

suffice:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.

Id. at 250 (footnote omitted). Morrisette was convict ___

under the statute for collecting bomb casings from a U.

military range and selling them as scrap metal. He argu

that he did not have the requisite intent because he thou

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that the casings were abandoned. The district court had he

that the statute did not require a showing of intent. T

Court, in reversing, concluded that the statute did deman

showing of intent because the statute did not co

"unwitting, inadvertent, and unintended conversions." Id.___

270. The Court went on to point out: "Knowing conversi

adds significantly to the range of protection of governme

property without interpreting it to furnish unwitti

conversions." Id. at 272. It is clear that intent was t ___

critical element of the offense with which Ribas was charge

The colloquy between the court and Ribas at t

conclusion of the plea hearing should have alerted the cou

that Ribas was claiming that, at the time the trousers we

sold to third parties, he did not intend to commit a cri

He told the court: "And although it has happened that it

a crime, at that instant I was not consciously stealing a

selling, but, obviously I made a mistake that is typified

a crime." Upon hearing this, the court, instead of aski

him what his intent was at the time, suggested that looki

back in retrospect Ribas now knew that he "obviously__ __________


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something wrong and against the law." But what Ribas knew

the time of the plea hearing does not establish crimin

intent at the time the trouser sales were made. Ribas

suggested to the court that he did not intend to commit t

crime charged. This was tantamount to asserting

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innocence. Instead of accepting the plea the court shou

have, at the very least, inquired as to Ribas' intent at t

time the trousers were sold.

We recognize that Ribas was an attorney and

engineer, which means that he was well educated a

presumably intelligent. This, however, cannot erase t

manifest errors made by the district court in two critic

areas of the Rule 11 colloquy. The element of scienter

very important in a case in which the property is lawfully

the possession of the defendant, and whether or not a cri

has been committed depends almost entirely on the defendant

understanding of what he was entitled to do with t


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property. This can be and usually is a complicated matt

when one is dealing with government contracts and procureme

regulations. In a somewhat similar case in the Fifth Circu

brought under 18 U.S.C. 641, the court reversed defendant

convictions. After pointing out that this kind of case

civil, rather than criminal in nature, the court stated:

The government indicted appellants on the theory that the title vesting clause truly vested title, and gave full ownership rights to the government for materials upon which progress payments

had been advanced. The title vesting provision of the Federal Acquisition Regulations creates no more than a security interest in the government's favor, and cannot be, under the facts of this case, a basis for prosecution under 18 U.S.C. 641. Appellants' convictions are REVERSED.

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United States v. Hartec Enterprises, Inc., 967 F.2d 130, 13

_____________ ________________________

35 (5th Cir. 1992). We of course do not intimate that Hart ___


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applies to the case before us. We quote it only to emphasi

that during the plea colloquy a proper explanation of t

scienter element is more than mere formality.

We think that the two erroneous statements by t

district court combined to create a core violation of Rule

and were so fundamentally defective as to require reversa

United States v. Raineri, 42 F.3d at 41 and 45. _____________ _______

We are fully cognizant of the case of United Stat __________

v. Japa, 994 F.2d 899, 903-04 (1st Cir. 1993), in which____

held that the omission of an intent inquiry by the distri

court, combined with the failure of the prosecutor to provi

in the proof statement any reference to a critical fact

one of the counts of the indictment, did not affect

substantial right of the defendant under Fed. R. Crim.

11(A). Japa is readily distinguishable. Count Two of t ____

indictment in Japa charged that defendant did knowingly a ____

intentionally possess 500 grams of cocaine "and did so wit

1,000 feet" of a school. Japa was not asked during the pl

hearing whether he intended to possess and distribute cocai

within 1,000 feet of a school. We noted that the presenten

report stated that defendant's apartment was within 1,0

feet of a school yard, and that defendant did not object

this statement. Another factor in our ruling was t

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defendant admitted in response to a question by the court

Count One (conspiracy) that he and the other alle

conspirator possessed and intended to distribute 500 grams

cocaine. The admitted facts made it clear that the cocai

referred to in Counts One and Two was the same and that t

distribution would start at defendant's apartment.

followed United States v. Zorilla, 982 F.2d 28, 30-31 (1 _____________ _______

Cir. 1992), and held:

that information in the presentence report and/or adduced at the probable cause hearing was sufficient to satisfy the elements of the crime charged even

though the district court judge failed to establish a factual basis for the plea at the hearing.

Japa, 994 F.2d at 904. ____

In the case before us there is nothing in t

presentence report indicating that Ribas intended to conve

and steal the trousers from the United States. We ha

reviewed carefully the extensive testimony and affidavi


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adduced at the hearing on the motion to withdraw the guil

plea. We are satisfied that there is no basis for findi

that the guilty plea was involuntary due to pressure

turmoil. The evidence shows that the defendant consistent

claimed that he was innocent of any wrong-doing. Indeed,

protestations of innocence continued through the sentenci

hearing. This is not a case in which claims of innocen

have been conjured up after the fact for purposes of taki

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advantage of some technical inadequacy in the plea colloqu

Nor is this a situation where the motion to withdraw the pl

has its genesis in the sentence. Rather, unlike t

defendantin Japa,Ribasmovedtowithdrawhispleabeforesentencin ____

Finally, we note that the government would not se

to be prejudiced by the delay in starting trial. Our revi

of the record shows that the evidence in this case wi

mainly be documentary. The government does not have to re


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on the vagaries of the memory of witnesses. The key eviden

will be the written contracts between Ribas and t

government and the applicable procurement regulations.

CONCLUSION CONCLUSION

__________

We find that there was a fair and just reason f

allowing Ribas to withdraw his plea. See Fed. R. Crim.___

32(d).

The judgment of the district court is vacated a

the case is remanded for trial, which shall be held befo

another judge.

So Ordered. So Ordered. ___________

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